Ricky Walter Denton v. Pat Stokes , 620 F. App'x 712 ( 2015 )


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  •            Case: 14-13160   Date Filed: 07/14/2015   Page: 1 of 5
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 14-13160
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 2:12-cv-04145-SLB-JEO
    RICKY WALTER DENTON,
    Plaintiff-Appellant,
    versus
    PAT STOKES,
    SA,
    Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    ________________________
    (July 14, 2015)
    Before ED CARNES, MARTIN and ANDERSON, Circuit Judges.
    PER CURIAM:
    Case: 14-13160       Date Filed: 07/14/2015        Page: 2 of 5
    Ricky Walter Denton, a federal prisoner proceeding pro se, sued FBI Special
    Agent Pat Stokes for allegedly violating Denton’s Fourth Amendment rights.1 See
    generally Bivens v. Six Unknown Named Agents, 
    403 U.S. 388
    , 
    91 S. Ct. 1999
    (1971). Before Stokes was served with Denton’s complaint, the district court sua
    sponte dismissed it without prejudice for failing to state a claim upon which relief
    could be granted. See 28 U.S.C. § 1915A (requiring district courts to screen civil
    actions filed by prisoners against government officers). Denton appeals that
    dismissal.
    We take the allegations in Denton’s complaint as true. Alba v. Montford,
    
    517 F.3d 1249
    , 1251–52 (11th Cir. 2008). A federal bank robbery investigation
    led to Denton’s convictions for armed bank robbery, 
    18 U.S.C. § 2113
    (a), (d), and
    for brandishing a firearm during a crime of violence, 
    id.
     § 924(c)(1)(A)(ii). After
    the investigation had begun but before his convictions, he was incarcerated in the
    county jail for a probation violation. During that incarceration, Stokes seized
    Denton’s nonlegal correspondence, photocopied it, and showed the copies to
    Denton’s fiancée and his son. The correspondence included letters to women other
    than Denton’s fiancée and letters that made unflattering comments about his son.
    1
    Denton’s Fourth Amendment claim is the only one that he has properly raised on appeal.
    He raised several other constitutional claims in the district court, but he has expressly abandoned
    those claims. Additionally, he attempts to add a First Amendment claim, but we do not consider
    it because he did not raise it before the district court. See Access Now, Inc. v. Sw. Airlines Co.,
    
    385 F.3d 1324
    , 1331 (11th Cir. 2004).
    2
    Case: 14-13160     Date Filed: 07/14/2015   Page: 3 of 5
    According to Denton, Stokes hoped the letters would encourage them to testify for
    the government at trial.
    We review de novo the district court’s decision to dismiss Denton’s Fourth
    Amendment claim against Stokes. Leal v. Ga. Dep’t of Corr., 
    254 F.3d 1276
    ,
    1278–79 (11th Cir. 2001). Construing the complaint liberally, see Boxer X v.
    Harris, 
    437 F.3d 1107
    , 1110 (11th Cir. 2006), it sought damages from Stokes in
    both his official and individual capacities. By seeking official capacity damages,
    Denton is actually seeking to impose liability on Stokes’ employer, the FBI, for
    Stokes’ allegedly unconstitutional actions. See Kentucky v. Graham, 
    473 U.S. 159
    , 165, 
    105 S. Ct. 3099
    , 3105 (1985). The Bivens theory of liability does not
    allow Denton to recover damages from the FBI. Dalrymple v. Reno, 
    334 F.3d 991
    ,
    995 (11th Cir. 2003); see Corr. Servs. Corp. v. Malesko, 
    534 U.S. 61
    , 70, 
    122 S. Ct. 515
    , 521 (2001) (“[T]he threat of suit against an individual’s employer was
    not the kind of deterrence contemplated by Bivens.”). Denton may seek damages
    against Stokes only in his individual capacity.
    Such damages are available as a general matter, but Denton must overcome
    qualified immunity to get them. See 28 U.S.C. § 1915A(b)(2) (requiring dismissal
    of prisoner complaints that “seek[] monetary relief from a defendant who is
    immune from such relief”); Wilson v. Blankenship, 
    163 F.3d 1284
    , 1288 (11th Cir.
    1998) (applying our qualified immunity precedent under 
    42 U.S.C. § 1983
     and
    3
    Case: 14-13160       Date Filed: 07/14/2015        Page: 4 of 5
    Bivens interchangeably). He may receive damages only if he can show that Stokes
    violated clearly established Fourth Amendment law by seizing Denton’s nonlegal
    correspondence, photocopying it, and disclosing the copies to third parties as part
    of the ongoing federal investigation. Otherwise, Stokes is entitled to qualified
    immunity. See Coffin v. Brandau, 
    642 F.3d 999
    , 1013 (11th Cir. 2011).
    At the time that Stokes seized, photocopied, and disclosed Denton’s
    nonlegal correspondence, it was not clearly established that doing so violated the
    Fourth Amendment. We had held that both the Sixth Amendment and the “right of
    access to the courts” limit the reading of correspondence from inmates with their
    attorneys. See Taylor v. Sterrett, 
    532 F.2d 462
    , 472–75 (5th Cir. 1976).2 We had
    also held that the First Amendment limits efforts to control of the volume of
    nonlegal, “general correspondence” that inmates send and receive. Guajardo v.
    Estelle, 
    580 F.2d 748
    , 753–56 (5th Cir. 1978).3 But we had not held (and still have
    not held) that the Fourth Amendment bars the reading, photocopying, and
    disclosing of inmates’ nonlegal correspondence as part of an ongoing investigation.
    There are some indications that it may not. See Hudson v. Palmer, 
    468 U.S. 517
    ,
    526, 
    104 S. Ct. 3194
    , 3200 (1984) (“The recognition of privacy rights for prisoners
    2
    In Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc), we adopted
    as binding precedent all decisions of the former Fifth Circuit handed down before October 1,
    1981.
    3
    Both Taylor and Guajardo are still the law of this Circuit, but we have read them in light of
    more recent Supreme Court decisions. See Al-Amin v. Smith, 
    511 F.3d 1317
    , 1330–32 (11th
    Cir. 2008).
    4
    Case: 14-13160       Date Filed: 07/14/2015       Page: 5 of 5
    in their individual cells simply cannot be reconciled with the concept of
    incarceration and the needs and objectives of penal institutions.”); Gassler v.
    Wood, 
    14 F.3d 406
    , 408–10 (8th Cir. 1994) (finding no First Amendment violation
    where prison officials seized a prisoner’s nonlegal correspondence, photocopied it,
    and disclosed the copies to law enforcement as part of an ongoing investigation);
    cf. United States v. Wilson, 
    671 F.2d 1291
    , 1294 (11th Cir. 1982) (distinguishing
    Taylor and Guajardo because neither case involved the Fourth Amendment).
    In any event, we need not decide the merits of Denton’s Fourth Amendment
    claim to resolve this appeal, so we express no view on it. It is enough that no
    precedent of the Supreme Court or this Court would have put Stokes on notice that
    the Fourth Amendment prohibited him from seizing Denton’s nonlegal
    correspondence while he was incarcerated, photocopying it, and showing those
    copies to others as part of an ongoing investigation. See Coffin, 642 F.3d at 1013.
    That being the case, Stokes is entitled to qualified immunity from Denton’s claim. 4
    See id.
    AFFIRMED.
    4
    Although § 1915A(b)(2) required dismissal of Denton’s complaint, he still had a right to
    amend it under Federal Rule of Civil Procedure 15. Brown v. Johnson, 
    387 F.3d 1344
    , 1349
    (11th Cir. 2004). He does not argue on appeal that the district court should have granted him
    leave to amend his complaint, so we do not consider that argument. See Timson v. Sampson,
    
    518 F.3d 870
    , 874 (11th Cir. 2008).
    5